Mr X and The Health Service Executive

Whether the HSE was justified in its decision to refuse access to medical records relating to a medical procedure the applicant underwent in Ard Keen Hospital, Waterford in the early 1980s

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

The applicant submitted a request to the HSE on 17 July 2015 for his medical file from Ard Keen Hospital, Waterford, (now University Hospital Waterford) in connection with two operations he had on his eye in the early 1980s. On 27 August 2015, as he had received no reply, the applicant submitted a request for internal review on the basis of the deemed refusal of his request. The HSE issued an internal review decision on 26 November 2015, refusing the applicant's request under section 15(1)(a) of the FOI Act. On 11 December 2015, the applicant sought a review by this Office of the HSE's decision.

I note that Mr Art Foley of this Office wrote to the applicant on 24 February 2016, providing details of the searches the HSE carried out for records within the scope of his request and of the historical record management practices of the HSE at the time, and that he informed the applicant of his view that the HSE was justified in its decision to refuse the request on the ground that the records no longer exist or cannot be found. The applicant has indicated that he does not accept Mr Foley's view. I therefore consider that this review should be brought to a close by issue of a formal, binding decision.

In conducting this review I have had regard to the correspondence between the applicant and the HSE, and to correspondence between this Office and both the HSE and the applicant.

Scope of Review

This review is solely concerned with whether the HSE was justified in refusing access to the applicant's medical records on the basis that they do not exist or cannot be found.

Analysis and Findings

Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. This Office's role in such cases is to review the decision of the public body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his or her decision. The evidence in "search" cases consists of the steps actually taken to search for the records, along with miscellaneous other evidence about the record management practices of the public body, on the basis of which the public body concluded that the steps taken to search for the records were reasonable. The Office's understanding of its role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan v the Information Commissioner (2002 No. 18 M.C.A. available on this Office's website, www.oic.ie)

In its submission to this Office, the HSE provided details of the searches it undertook in order to locate the records sought by the applicant, and of it's historical records management practices. As I have outlined above, Mr Foley has provided the applicant with details of the searches performed by the HSE. Therefore, while I do not propose to repeat those details in full, I can confirm that I have regard to them for the purposes of this decision.

In summary, the HSE stated that the hospital record archive storage areas, as well as the database of older records retained off-site, were searched for records within the scope of the applicant's request. It stated that these searches were performed both manually and electronically. No records relating to the applicant were located on foot of these searches. It stated that that no other record storage areas exist within the Hospital.

The HSE further stated that while a small number of records from Ard Keen Hospital 1981/1982 are held by it, none of the records relate to the Ophthalmic Service which the applicant attended. It stated that following the decommissioning of a previous off-site storage area used by the Hospital in 1999, the only ophthalmic records retained by it were Eye Minor Ops Registers (1994 - 1996), Eye A&amp;E Register (1994 - 2004) and the Eye Theatre Register (1995 - 2000).

In his correspondence with the HSE, the applicant indicated that he required proof that his records were destroyed, in accordance with records management practices. In response, the HSE stated that no policy pertaining to the retention, storage and disposal of records was in place at the time the records sought by the applicant were created at Ard Keen Hospital and that the Hospital's record retention policy was introduced in 1999. Its position is that as no policy on the retention of records was in place before 1999, no records exist which list records disposed of by the Hospital before this time.

Having considered the submissions of both parties and the steps taken by the HSE to locate records, I am satisfied that the HSE has taken all reasonable steps to locate records within the scope of the applicant's request. I find, therefore, that the HSE was justified in its decision to refuse the applicant's request for medical records under section 15(1)(a) of the FOI Act on the basis that the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the HSE to refuse access to the applicant's medical records.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.